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2020 DIGILAW 194 (RAJ)

Bal Singh v. State of Rajasthan

2020-01-22

I.MAHANTY, PUSHPENDRA SINGH BHATI

body2020
JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. This special appeal has been preferred by the appellant/writ petitioner claiming the following relief: "(A) the instant special appeal may kindly be ordered to be allowed and the impugned judgment/order dated 11th Sept., 2008 passed by the learned Single Judge in S.B. Civil Writ Petition No. 6041/2008 (Bal Singh Vs. State of Raj. & Ors.) may kindly be ordered to be quashed and set aside and the official respondents may kindly be directed to give possession of the land allotted to the humble appellant comprised in Murabba No. 297/355 of Chak 24 PTD, Tehsil Raisinghnagar, District Sriganganagar and the writ petition of the humble appellant may kindly be ordered to be allowed as prayed for and the application under Order 41 Rule 27 preferred by the humble appellant may kindly be allowed." 2. Brief facts of this case, as noticed by this Court, are that the appellant/writ petitioner submitted an application under Section 14(1) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 on 19.12.1954. The Naib Tehsildar, Jambaramgarh on 02.02.1956 found the appellant/writ petitioner entitled for allotment of 78 bighas of Khudkasht land, as per the report sent by the Deputy Collector, Jagir (Jaipur). The matter was further forwarded by the Deputy Collector, Jagir (Jaipur) to the Commissioner (Khudkasht), Jaipur on 04.02.1956, while reporting the yearly income of the appellant/writ petitioner as Rs. 1900/- and his entitlement to hold further 42 bighas 15 biswas of land. Finally, an order was passed on 29.02.1956, whereby the appellant/writ petitioner was held by the State-respondents to be entitled for allotment of 1 Murabba (25 bighas) of land. However, inspite of the process, the land was not allotted to the appellant/writ petitioner. 3. On 26.02.1998, the appellant/writ petitioner moved an application to the Commissioner (Khudkasht) for allotment of the land in command area. The proceedings again culminated into the judgment dated 11.10.2000, whereby the appellant/writ petitioner was declared entitled for allotment of 25 bighas (1 Murabba) of land situated in Chak 24 PTD, Murabba No. 297/355, Tehsil Raisinghnagar, District Sri Ganganagar. The said judgment also sought report from the Collector, who submitted that the above land was available for allotment, as it was recorded as Rakba Raj. The said judgment also sought report from the Collector, who submitted that the above land was available for allotment, as it was recorded as Rakba Raj. Pursuant to the said judgment dated 11.10.2000, an allotment order was issued on 01.11.2000 whereby, the Khudkasht Commissioner allotted 25 bighas of land to the appellant/writ petitioner situated at Chak 24 PTD, Murabba No. 297/355, Tehsil Raisinghnagar, District Sri Ganganagar. 4. In the meanwhile, one Late Moti Ram, whose legal heirs are on record, was allotted the same land on 30.03.1965, but on account of non-payment of the requisite installment, the allotment of land to Late Moti Ram was cancelled vide order No. 124 dated 19.02.1979 passed by the Deputy Colonization Commissioner, Vijay Nagar. Late Moti Ram thereafter, filed an application on 01.05.1989 before the Sub Divisional Officer, Raisinghnagar seeking permission to deposit the installments; consecutive application were also preferred for the same purpose. Late Moti Ram and his legal heirs submitted similar applications before the Collector, Sri Ganganagar. Late Moti Ram and his legal heirs also deposited certain amounts, and also simultaneously filed a suit for permanent injunction before the MGM Raisinghnagar under Order 39 Rules 1 and 2 of the Code of Civil Procedure, wherein an ex parte injunction order was passed, however, the same was vacated on 06.09.1993. 5. The legal heirs of Late Moti Ram thereafter, preferred S.B. Civil Writ Petition No. 5489/1993 (Mangla Ram & Ors. Vs. State of Rajasthan & Ors.) seeking direction to the authorities to accept the installments payable by the original allottee, Late Moti Ram alongwith interest and to restore the allotment order. In the aforementioned writ petition No. 5489/1993, the learned Single Judge of this Hon'ble Court passed an interim order dated 01.11.1993, whereby the water irrigation facility for the land in question was directed not to be stopped. The private respondents, who stepped into the shoes of Late Moti Ram, took a stand that they could not deposit the installments in time due to bad financial condition and on account of the fact that the land was not fertile and was full of sand dunes, and therefore, the allotment of land in favour of Late Moti Ram was cancelled way back in the year 1979. While adjudicating the aforesaid writ petition, the learned Single Judge of this Hon'ble Court also observed that the petitioners therein were ordered to be dispossessed in the year 1979, and thus, thereafter their status was that of trespassers; however, it is not disputed that they remained in possession. Learned Single Judge of this Hon'ble Court, while deciding writ petition No. 5489/1993, held that though Late Moti Ram was allotted the land on 26.03.1965, upon the condition of payment of installments, but once he failed to do so, the allotment was cancelled, as per the terms and conditions, in the year 1979, and thereafter, certain installments were paid; but since no vested right was infringed, therefore, the writ petition was disposed of vide judgment dated 20.12.2002, while categorically holding that though there were no merits in the writ petition, but looking to the long term possession of the private respondents, who were petitioners therein, the Court observed that if the land has not been allotted to anybody else, then if permissible under the rules, the authorities may allot the land to the private respondents on the notified price prevalent at the relevant time. The operative portion of the said judgment dated 20.12.2002 reads as under: "This Court while exercising powers conferred under Article 226 of the Constitution cannot interfere in such matter when no existing right vested in favour of petitioner is infringed nor there is any violation of rules or regulation causing miscarriage of justice. Though there no merits in this writ petition, however, the petitioners are in possession since the year 1965 and have made some payment towards the price of the land in question. If permissible under rules and if the land is not allotted to anybody else, the respondents may allot the land to the petitioners upon present notified price which may be charged on installment basis by deducting the amount already paid. With these observations, this writ petition is disposed of." 6. If permissible under rules and if the land is not allotted to anybody else, the respondents may allot the land to the petitioners upon present notified price which may be charged on installment basis by deducting the amount already paid. With these observations, this writ petition is disposed of." 6. Though the aforequoted judgment virtually recognized no existing right of the private respondents, but here a conditional relief has been given effect to that if the land has not been allotted, it could be further allotted; however, this was on account of the fact that it was not brought to the notice of the learned Single Judge that the land in question had already been allotted vide order dated 01.11.2000, in pursuance of the judgment dated 11.10.2000, as mentioned above, in favour of the present appellant/writ petitioner. 7. Despite the allotment, when the possession of the land in question was not given, the appellant wrote letters, in lieu whereof, Deputy Secretary, Government of Rajasthan wrote a letter to the District Collector on 22.05.2003 that allotment in favour of Late Moti Ram was cancelled on 19.02.1979, and thereafter, land has been allotted to the present appellant, and therefore, possession of the same may be given to him. The Collector thereafter, ordered the Tehsildar (Land Records) Raisinghnagar vide order dated 24.7.2003 to effect compliance of the aforementioned orders dated 22.05.2003 and 01.11.2000. 8. The State meanwhile started interpreting the order dated 20.12.2002 passed by learned Single Judge of this Hon'ble Court in S.B. Civil Writ Petition No. 5489/1993 (Mangla Ram & Ors. Vs. State of Rajasthan & Ors.), and while ignoring the observation, ".....if the land is not allotted", the State started delaying giving of the possession of the land in question. The appellant/writ petitioner therefore, preferred S.B. Civil Writ Petition No. 6041/2003 before this Hon'ble Court praying, in sum and substance, compliance of the order of allotment. However, for ready reference, the reliefs claimed in the said writ petition read as under: "(A) the respondents may kindly be directed to effect the compliance of the order dated 11.10.2000 passed by the Commissioner, Khud Kast by giving possession of vacant land to the petitioner; (B) Any other relief that may be deemed fit in the facts and circumstances of this case may kindly be granted in favour of the petitioner. (C) Cost of the writ petition may kindly be awarded in favour of the petitioner." Vide the impugned judgment dated 11.09.2008, the aforementioned writ petition was decided by the learned Single Judge, while observing that the private respondents were the successors of the original allottee, who had continued to occupy and cultivate the land in question and are willing to make the complete payment towards the price, and thus, they may be allotted the land. Learned Single Judge has also relied upon the judgment dated 20.12.2002 passed in the earlier writ petition being S.B. Civil Writ Petition No. 5489/1993, on the ground that the Court had observed that the authorities may allot the land in question to the present respondents. The operative portion of the impugned judgment dated 11.09.2008 reads as under:- "The order so passed on 20.12.2002 brings to the fore the significant factor that the successors of the allottee Moti Ram being in possession of the land in question was a fact recognised by this Court. The suggestion as made on behalf of the petitioner in the present writ petition that the allotment order dated 11.10.2000 has become final and therein the land was found vacant, cannot be given much credence contrary to the findings of this Court even if recorded after passing of the order dated 11.10.2000. In fact, while making the order in favour of the petitioner on 11.10.2000, the learned Commissioner kept at bay the relevant part of the comments of the Collector, Sriganganagar that dispute was likely to exist about the land in question. Of course, it seems that pendency of the said writ petition filed in the year 1993 was not as such brought to the notice of the Commissioner but then, mere ignorance of such a relevant fact would not provide an overriding effect to the order dated 11.10.2000 above the order as passed by this Court in a petition that was pending at the time when the said order was made by the Commissioner on 11.10.2000. The said order dated 11.10.2000 is required to be read subject to the order passed by this Court on 20.12.2002. In this view of the matter, the order dated 11.10.2000 as passed by the Commissioner cannot be said to be conferring unfettered legal rights on the petitioner so as to be enforced by way of a writ of mandamus. The said order dated 11.10.2000 is required to be read subject to the order passed by this Court on 20.12.2002. In this view of the matter, the order dated 11.10.2000 as passed by the Commissioner cannot be said to be conferring unfettered legal rights on the petitioner so as to be enforced by way of a writ of mandamus. Of course, in the order dated 20.12.2002 as passed in CWP No. 5489/1993 this Court required the authorities to consider making allotment to the said petitioners upon payment of notified price, if permissible under the rules and if the land was not allotted to anybody else; but then, the allotment order as made in favour of the present petitioner cannot be said to be that kind of allotment wherefore the writ otherwise issued by this Court be treated to be futile or infructuous. The allotment as contemplated by the order dated 20.12.2002 was, obviously, a legal and valid allotment made in due regard to all the facts and the law applicable. It was not a case as if the land was duly advertised for allotment and then allotment was made under the rules to the petitioner. The order dated 11.10.2000, when made either in ignorance or in disregard to the core fact that the dispute concerning the land in question was sub judice in CWP No. 5489/1993, cannot be said to be investing the petitioner with an overriding legal right. This Court is of considered opinion that if any other view is taken whereby the writ issued by this Court is treated infructuous, the same would be contrary to the letter and spirit of the aforesaid order dated 20.12.2002. Though earlier the Deputy Secretary to the Government proceeded on some ignorance of facts while issuing the letter dated 22.05.2003 (Annex. 3) but has made amends by issuing the letter dated 30.04.2005 (Annex. R/5) to the effect that claim of the party who had approached the High Court was prior to the claim of Jagirdar and, therefore, in the light of the decision of the High Court dated 20.12.2002, the said party would be having first right to get the land, of course, on the condition of making payment. R/5) to the effect that claim of the party who had approached the High Court was prior to the claim of Jagirdar and, therefore, in the light of the decision of the High Court dated 20.12.2002, the said party would be having first right to get the land, of course, on the condition of making payment. The matter has rightly been dealt with by the Deputy Secretary after noticing the order passed by this Court and the actions as taken pursuant to the said communication dated 30.04.2005 have the approval of this Court. Even the balance of equities does not appear in favour of the petitioner so as to allow him allotment of land in question in preference over the successors of the original allottee. All in all, it appears that the allottee and after him, his successors, have continued to occupy and cultivate the land in question. Moreover, when they had shown willingness to make payment of the substantial amount towards the price of land as demanded, there appears no reason that contrary to the spirit of the order dated 20.12.2002, the petitioner be given a preference for free allotment of the land in question that came to be suggested by him only at a later stage as noticed hereinabove. The fact further remains that the land in question is stated to be falling in first phase of IGNP and the Collector, even while forwarding his comments to the Commissioner pointed out that the same was a valuable land and if at all, is to be allotted only by way of special allotment. It is also noticed that the petitioner chose to prefer this writ petition seeking a relief in the nature of mandamus without even serving a notice for demand of performance upon the authorities concerned. Although, for the petition having been entertained and respondents having filed reply, this aspect need not be dilated upon any further in this case, yet the requirement nevertheless remains that such petition must be preceded by a demand for performance of duty and such demand must be shown to have been met by a refusal, direct or by conduct. Taking an overall view of the matter, this Court is satisfied that till the claim pursuant to the order passed in CWP No. 5489/1993 is finalized, the petitioner cannot be acceded the right to claim allotment and possession of the land in question. Taking an overall view of the matter, this Court is satisfied that till the claim pursuant to the order passed in CWP No. 5489/1993 is finalized, the petitioner cannot be acceded the right to claim allotment and possession of the land in question. For the reasons aforesaid, this Court is of considered opinion that the writ as sought in the present case, for enforcement and compliance of the order dated 11.10.2000, cannot be issued at this stage and, therefore, this petition deserves to be dismissed. However, entitlement of the petitioner for allotment of land as Ex-Jagirdar is not in dispute and the matter of making allotment to the private respondents pursuant to the writ issued by this Court is also pending. It appears appropriate and necessary, therefore, that the respondents Nos. 1 to 3 should immediately take up finalization of the matter pertaining to the private respondents and then, without delay, take up and finalize the matter of allotment of land to the petitioner also. Subject to the observations aforesaid, this writ petition is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs." 9. Mr. R.D.S.S. Kharlia, learned counsel for the appellant/writ petitioner submitted that the petitioner's entitlement for allotment has been recognized by law vide order dated 29.02.1956, which was crystallized in the form of judgment dated 11.10.2000 and the consequential allotment order dated 01.11.2000, whereby 25 bighas of the land at Chak 24 PTD Murabba No. 297/355, Tehsil Raisinghnagar, District Sriganganagar was allotted to the present appellant/writ petitioner. Learned counsel further submitted that though the land was allotted to Late Moti Ram on 30.03.1965, but the said allotment was apparently cancelled vide order No. 124 dated 19.02.1979 passed by the Deputy Colonization Commissioner, Vijay Nagar. Learned counsel also submitted that the cancellation order dated 19.02.1979 was never ever challenged by the private respondents, and thus, it attained finality. Learned counsel further submitted that the order of allotment of the land in question in favour of the present appellant/writ petitioner vide order dated 01.11.2000 (Annexure-2) in pursuance of the judgment dated 11.10.2000 (Annexure-1) has also never been challenged by the private respondents, and thus, the same has attained finality, and the same could not have been interfered with by the learned Single Judge, while making adjudication of the writ petition, in which impugned order was passed. Learned counsel also submitted that the impugned order was not a correct proposition of facts and law, as the prayer of the private respondents to get the allotment proceedings re-initiated had already been denied by learned Single Judge of this Hon'ble Court in its judgment rendered on 20.12.2002 in S.B. Civil Writ Petition No. 5489/1993 (Mangla Ram & Ors. Vs. State of Rajasthan & Ors.), and thus, the right to pray any further, stood foreclosed at the instance of the private respondents, as they did not choose to challenge the judgment dated 20.12.2002 before any higher forum. Learned counsel further submitted that it was the writ petition of the present appellant where he was seeking implementation of the order of allotment in his favour, and thus, there should not have been any question of granting any relief to the private respondents, in relation to the prayers made by the present appellant/writ petitioner. Learned counsel also submitted that the rights of the appellant/writ petitioner have been crystallized, and thus, the same could not have been gone into afresh by the Hon'ble Court while sitting in the Single Bench. 10. Mr. J.L. Purohit, learned Senior Counsel assisted by Mr. N.R. Budania for the private respondents however, submitted that Late Moti Ram and his family members have their rights accrued way back in 1965, and since then, they have been regularly practicing agricultural activity, while having possession of the said land. Learned Senior Counsel further submitted that on various occasions, installments were paid and contest was made to reinitiate the allotment, which had come to an end on 19.02.1979, and that, there were positive developments regarding such allotment process, as various authorities from time to time considered the same, without denying it finally. Learned Senior Counsel further submitted that the order dated 20.12.2002 passed by learned Single Judge of this Hon'ble Court in S.B. Civil Writ Petition No. 5489/1993 filed by the private respondents in fact recognized the right of long drawn possession of the private respondents, and thus, gave a positive direction to the respondents authorities to take rest of the installments at the prevailing market rates of the land in question, if the same was not allotted to anybody else. Learned Senior Counsel also submitted that the claim of the private respondents was absolute, as they were in continuous cultivatory possession of the land in question, and thus, the learned Single Judge had rightly passed the impugned order, while taking into consideration the long drawn possession and the agricultural rights, which had accrued to the private respondents, and particularly, when the appellant/writ petitioner had not got the possession even for one day. Thus, as per learned Senior Counsel, unsettling a settled position of the year 1965, particularly in light of the fact that number of efforts have been made and quite an amount of installments have already been put in by the private respondents. In support of his submissions, learned Senior Counsel has relied upon the precedent law laid down by the Hon'ble Supreme Court in Ram Kishun & Ors. Vs. State of U.P. & Ors., reported in AIR 2012 SC 2288 ; Union of India & Anr. Vs. Shashank Goswami & Anr., reported in AIR 2012 SC 2294 } Tej Singh Vs. State of Rajasthan & Ors., reported in (1994) 4 SCC 575 and; Ghasi Ram & Ors. Vs. Board of Revenue & Ors., reported in 2001 RRD 184, in which the Hon'ble Apex Court had taken into consideration the long drawn cultivation of the land alongwith the allotments made. 11. In his rejoinder arguments, learned counsel for the appellant/writ petitioner submitted that the averments made on behalf of the private respondents are of no consequence, as the judgment dated 11.10.2000 and the consequential allotment order dated 01.11.2000 were never challenged by them, and once they have attained finality, the same ought not to be reversed in favour of the private respondents. Learned counsel has relied upon the precedent law laid down by the Hon'ble Supreme Court in Hajuri P.C. Khuntia & Ors. Vs. Brundaban Das & Ors., reported in (2000) 6 SCC 533 , where the matter pertaining to the tenancy and land laws was remitted to the learned authorities, even after 36 years, for fresh adjudication. 12. Learned counsel has relied upon the precedent law laid down by the Hon'ble Supreme Court in Hajuri P.C. Khuntia & Ors. Vs. Brundaban Das & Ors., reported in (2000) 6 SCC 533 , where the matter pertaining to the tenancy and land laws was remitted to the learned authorities, even after 36 years, for fresh adjudication. 12. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent laws cited at the Bar, this Court finds that the rights of the present appellant/writ petitioner accrued out of an order of Commissioner (Khudkast) Jaipur dated 29.02.1956, when the appellant was held entitled for allotment of 1 murabba (25 bighas) of land. After contesting the said right, the appellant/writ petitioner finally got a judgment dated 11.10.2000 from the Commissioner (Khudkasht) and an order dated 01.11.2000, whereby his allotment of 1 murabba (25 bighas) at Chak 24 PTD Murabba No. 297/355 Tehsil Raisinghnagar, District Sriganganagar got finalized. 13. This Court takes note of the fact that the allotment of land made in favour of the appellant/writ petitioner was never challenged by private respondents till today. 14. The only affirmative action of the private respondents, who had the same land allotted in their favour on 30.03.1965, which was cancelled vide order No. 124 dated 19.02.1979 passed by the Deputy Colonization Commissioner, Vijay Nagar, was that they preferred S.B. Civil Writ Petition No. 5489/1993 seeking to revive the allotment order passed earlier in their favour. The learned Single Judge of this Hon'ble Court, while adjudicating the rights of the private respondents in the said writ petition, held that there were no merits in such adjudication, and thus, the Court was not inclined to exercise its powers conferred under Article 226 of the Constitution of India, as it observed that there was no existing right vested in favour of the private respondents, which was infringed, and nor there was any violation of the rules or regulations causing miscarriage of justice. However, the Court, at that time, had permitted allotment of land to the private respondents by a fresh process, if permitted under the Rules and if the land was not allotted to anyone else. However, the Court, at that time, had permitted allotment of land to the private respondents by a fresh process, if permitted under the Rules and if the land was not allotted to anyone else. Since the said judgment was dated 20.12.2002, therefore, a clear position emerged that the last portion of the judgment giving certain benefit to the private respondents could not have been activated, as the land stood finally allotted to the present appellant on 01.11.2000 in pursuant of the judgment dated 11.10.2000. 15. The impugned order was passed in a writ petition, which had been filed by the appellant seeking activation of the allotment order dated 01.11.2000, and thus, there was no reason to pass an order in favour of the private respondents, who had neither challenged the allotment order and had nor challenged the dismissal of their own writ petition vide judgment dated 20.12.2002. 16. The learned Single Judge, while passing the impugned order, upon adjudicating the rights being claimed by the present appellant, could have either accepted those rights or could have denied the same, but the learned Single Judge has gone ahead to protect the rights of the private respondents, who had not even claimed any right in the said writ petition, and whose rights stood crystallized by cancellation of the allotment vide order dated 19.02.1979 and failure of their litigation in S.B. Civil Writ Petition No. 5489/1993 which did not recognize any right of the private respondents vide judgment dated 20.12.2002. 17. The long term cultivation could have given a clear sympathy and reason to make interference in favour of the private respondents, in case the land was free from allotment at the relevant time. However, since the allotment made in favour of the appellant/writ petitioner had attained finality and has not been challenged by any of the respondents, therefore, the long term possession cannot give any benefit to the private respondents. 18. This Court is of the clear opinion that the appellant's rights accrued vide order dated 29.02.1956, and got crystallized vide judgment dated 11.10.2000 (Annexure-1) and order dated 1.11.2000 (Annexure-2), were never under challenge, and therefore, stood finalized. 18. This Court is of the clear opinion that the appellant's rights accrued vide order dated 29.02.1956, and got crystallized vide judgment dated 11.10.2000 (Annexure-1) and order dated 1.11.2000 (Annexure-2), were never under challenge, and therefore, stood finalized. The rights of the private respondents, after thorough adjudication, were also finalized in their litigation, whereby the learned Single Judge of this Hon'ble Court, while passing the order dated 20.12.2002 categorically observed that they had no right whatsoever which could fetch them a positive direction from this Hon'ble Court, except for a liberty to get the land re-allotted in case it was not allotted, and thus, the condition of the judgment, at the threshold itself, was of no consequence to the private respondents. The impugned judgment, seeking to adjudicate the rights of the appellant, has virtually allowed the prayers of the private respondents even when the prayers of the private respondent had already attained finality in negative as referred above and thus, the same cannot be sustained. 19. With the aforesaid observations, the present appeal is allowed, and while quashing and setting aside the impugned order dated 11.09.2008 passed by learned Single Judge, the writ petition preferred by the appellant/writ petitioner is allowed. The respondents are directed to comply with the aforementioned orders dated 11.10.2000 and 01.11.2000 passed in favour of the appellant, within a period of three months from today. All pending applications stand disposed of.